Central Liberty Trust Company v. Roy
| Decision Date | 06 December 1922 |
| Citation | 245 S.W. 1085,212 Mo.App. 680 |
| Parties | CENTRAL LIBERTY TRUST COMPANY, Appellant, v. JASON E. ROY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Douglas County Circuit Court.--Hon. Fred Stewart, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Jos. V Pitts for appellant.
J. S Clark for respondent.
Action by plaintiff upon certain trade acceptances signed by defendant. Trial by jury and verdict for defendant. Plaintiff then filed a motion for new trial which was sustained by the court but afterward and at a subsequent term of court, the court set aside the order sustaining plaintiff's motion for new trial and entered an order overruling the motion. Plaintiff then appealed.
This case has a peculiar history as to the question of practice. The case was tried at the January Term, 1922, of the Douglas County Circuit Court and a verdict returned for defendant. Within four days, plaintiff filed a motion for new trial and on February 20, 1922, during the same term, the court sustained this motion and entered that fact in the record. On the same day, the defendant filed a motion to set aside the order sustaining plaintiff's motion for new trial. On the same day plaintiff filed an application for a change of venue. On the same day, the court entered of record an order continuing the cause to the next term. This was all that was done at that term. At the next term, which was the April Term, 1922, and on the 14th day of April, the fifth day of that term, the court entered of record the following order in the cause, omitting caption:
The above order was followed by another order on the same day overruling plaintiff's motion for new trial.
By the history of the case, it will be seen that at the same term at which the verdict was rendered, the plaintiff in proper time filed a motion for new trial which was sustained. The defendant then filed a motion to set aside the order of the court sustaining plaintiff's motion for new trial and the cause was then continued to the next term without any further action by the court. At the next term, the court entered an order sustaining defendant's motion to set aside the order of the court sustaining plaintiff's motion for new trial and then entered another order overruling plaintiff's motion for new trial.
The first question to be determined is whether the court had the power at a subsequent term to set aside an order made at the previous term sustaining a motion for new trial. At common law the court could of its own motion set aside a verdict and grant a new trial at the same term at which the verdict was returned but could not do so after that term expired. That power, except as specifically limited by statute, still remains in the court under the code practice in this State. [Marsala et al. v. Marsala et al., 288 Mo. 501, 232 S.W. 1048; State ex rel. v. Ellison, 256 Mo. 644, 165 S.W. 369; Ewart v. Peniston, 233 Mo. 695, 136 S.W. 422; Williams v. Railroad, 156 Mo.App. 675, 138 S.W. 44.]
It has been uniformly held in this State that the statute which requires motions for new trial to be filed within four days after the return of the verdict is mandatory and that after the expiration of the four days the motion cannot be amended. It has been held, however, that while a motion for new trial or an amendment thereto filed after four days cannot be considered as preserving any rights to the party filing it nor can the court be compelled to pass upon it, yet the court may in the exercise of its inherent power to set aside a verdict and grant a new trial upon its own motion, consider a motion for new trial or amendment thereto filed out of time as a suggestion to the court, and the court may then, upon its own motion, investigate the matter and if convinced that justice demands a new trial, it may be granted but all this must occur at the same term at which the verdict is returned. [Scott & Colburne v. Joffee, 125 Mo.App. 573, 102 S.W. 1038; Williams v. Railroad, 156 Mo.App. 675, 138 S.W. 44; State ex rel. v. Ellison, 256 Mo. 644; l. c. 665, 165 S.W. 369; Ewart v. Peniston, 233 Mo. 695, 136 S.W. 422.]
The practice of one party filing a motion to set aside an order of court sustaining a motion for new trial filed by the opposite party for the error of the court in sustaining said motion was unknown to the common law and is not provided for by our code of procedure and it cannot preserve any right to the party filing it. It could rise to no higher dignity than a mere suggestion...
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